In "A Child is Missing" we report all Federal Hague Convention Child Abduction Cases. We also provide information to help legal practitioners understand the basic issues, discover what questions to ask and learn where to look for more information when there is a child abduction that crosses country boarders.

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Monday, August 15, 2011

In Avendano v Smith, 2011 WL 3503330 (D.N.M.) Smith argued that the Federal Rules of Evidence did not apply to proceedings under the Hague Convention. The District Court disagreed with her. It observed that Rule 1101(b) of the Federal Rules of Evidence states: "These rules apply generally to civil actions and proceedings, including admiralty and maritime cases, to criminal cases and proceedings, to contempt proceedings except those in which the court may act summarily, and to proceedings and cases under title 11, United States Code."

The cases the Court found suggested that the Federal Rules of Evidence apply in a court's consideration of a petition for return of children. It noted that in Danaipour v. McLarey, 386 F .3d 289 (1st Cir.2004), the mother removed her two daughters from the Kingdom of Sweden to the United States of America in violation of a Swedish Court order, and the father filed suit in the United States seeking to have the children returned pursuant to the "International Child Abduction Remedies Act, and the Hague Convention on the Civil Aspects of International Child Abduction. The United States Court of Appeals for the First Circuit addressed the district court's conclusion, under rule 1101(b) of the Federal Rules of Evidence, that "the summary character of Hague Convention proceedings does not require application of the Federal Rules of Evidence regarding hearsay...." 386 F.3d at 296. The First Circuit stated: "While summary proceedings certainly may occur in cases under the Convention, this was not one. Indeed, this was a full trial." 386 F.3d at 296. The First Circuit stated, however: "Whatever our doubts, nonetheless, Danaipour has not directly raised on appeal the point of the applicability of the Federal Rules of Evidence; at most he argues that the mother's family's recounting of the children's statements to physicians constituted inadmissible double hearsay and was inherently unreliable."

The United States Court of Appeals for the Third Circuit has also suggested that the Federal Rules of Evidence apply in adjudications of petitions for return of children under the Hague Convention. See Karkkainen v. Kovalchuk, 455 F.3d 280, 285 (3d Cir.2006)(rejecting Karkkainen's claim that the district court improperly permitted testimony regarding the daughter's best interests, stating that "Karkkainen points to no specific instances in which the District Court permitted such testimony, and we have found none within the record. We also conclude that the District Court admitted hearsay testimony only under the exceptions of the Federal Rules and properly limited its use," and concluding, "[t]hus, we find no abuse of discretion on these points").

The Court thus concluded that the Federal Rules of Evidence apply to its consideration of the Petition.

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About The Author

This blog is published by Joel R. Brandes Consulting Services, Inc.
Joel R. Brandes is the author of the "Law and the Family New York 2d", and "Law and the Family New York Forms" (Thomson-West). He is not a lawyer.
Joel R. Brandes Consulting Services, Inc. is not a law firm, or a lawyer and does not give legal advice.
Notice: The information on this site pertains to New York and Federal law only and is offered as a public service. It is not intended to give legal advice about a specific legal problem, nor does it create an attorney-client relationship. Due to the importance of the individual facts of every case, the generalizations we make may not necessarily be applicable to any particular case. Changes in the law could at any time make parts of this web site obsolete. This information is provided with the understanding that if legal advice is required the services of a competent attorney should be sought.

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What this Blog is About

This blog is dedicated to all of those parents, relatives and friends of persons whose children are missing and have been abducted by a parent, to another country. The Convention on the Civil Aspects of International Child Abduction, commonly referred to as the Hague Convention, established procedures to enable parents to obtain the prompt return, to their country of habitual residence, of children who have been unlawfully removed or retained in another country. In this blog we will focus on providing information with regard to what to do where there is a child abduction that crosses country boarders.

This Blog is written by Joel R. Brandes, the author of Law and the Family New York, Second Edition Revised, and Law and the Family New York Forms (Thomson-West), Bari Brandes Corbin, of the New York Bar, and co-author of Law and the Family New York, Second Edition, Revised, Volumes 5 & 6 (Thomson-West), and Evan B. Brandes, of the New York and Massachusetts Bars, and a Solicitor in New South Wales, Australia. The authors write the annual supplements to Law and the Family New York, Second Edition Revised, and Law and the Family New York Forms